Lipman: Will must be probated to deal with house title

RONALD LIPMAN, HOUSTON CHRONICLE |
December 6, 2009

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The information in this column is not intended as legal advice but to provide a general understanding of the law. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q. My wife and I each have a will written by a lawyer. If I die first, everything goes to her. If I had wanted others to have anything, I would have named them in my will. Her will does the same for me. Both our names are on our bank accounts, credit cards and whatever else. Our life insurance and investments name each other as beneficiary. Why would the will have to be probated? It all goes to her or me. What is the probate going to cost the estate?

A. The reason the will has to be probated is to clear up title to your house. Even though all your other assets will pass to the surviving spouse directly, the home will remain in both your names unless you conduct some form of probate.

The one of you who outlives the other might go decades without any title problems. One day, though, the survivor will want to sell the home or take out a home equity loan, and then the title company handling the transaction will most likely want to see the probate papers from the deceased spouse's estate. The same issue would arise after you both have died if your beneficiaries want to sell the home.

There is a chance that a title company would approve the sale or an equity loan on your home, either before or following your death, without first requiring that your wills be probated. In such a case, the title company may ask that an Affidavit of Heirship be completed and recorded.

An Affidavit of Heirship is a form that is signed by one or more persons who outlive you, and it is a substitute for probate. The affidavit states who died and who inherited that person's estate. The people who get listed as heirs in the Affidavit would be determined by statute, and these people may not be the same people who are named in your will. For instance, you may be disinheriting one of your children in your will, but under Texas law, that child would still inherit a share of your estate using an Affidavit of Heirship.

A key factor is that you don't know what the title company will require until you (or your heirs) try to sell the house or obtain a home equity loan. If it required probate, then the transaction would likely get delayed for weeks or months. That is why many people in your situation choose to proceed with the probate even though it costs them money to do so. You can expect to pay several thousand dollars to most attorneys for this service.